Penalties for delay
The contract contracts provide for criminals for the delay in the execution of the contractual services by the executor commensurate with the days of delay and proportional compared to the amount of the contract or contractual services (schedule).
Compared to the provisions of Legislative Decree 50/2016, now the penalties due for the delayed fulfillment are calculated to a daily extent between 0.5 per thousand and 1.5 per thousand of the contractual net amount, to be determined in relation to the extent of the consequences related to the delay, and cannot however exceed, overall, 10 percent of said contractual amount.
In the construction of the procedure that will determine the application of the penalties, the figures engaged are above all:
- the works manager;
- The sole manager of the procedure.
In the first case, this is the technical subject who, on the occasion of delays of entity that cannot be recovered must inform the RUP to concert together the measures to be taken.
In the second case, this is the coordination figure, for that specific intervention, of the contracting authority which has the function of evaluating the terms of the delay and defining, together with the works manager, the actions to be started including those that will want to agree with the same contracting authority with respect to the problems related to the contract for the execution of the works.
On the application of the penalties, as required by article 21, paragraph 3 of Annex II.14 to Legislative Decree 36/2023, with respect to which a definitive resolution has not already intervened, the test driver is also pronounced in his confidential report.
The compulsory and optional reward
For works contracts, the contracting authority provides (pursuant to article 45, paragraph 1, letter “a” and “b” of Legislative Decree 36/2023 – corrective) in the announcement or in the notice of calling of the tender which, in cases where the completion of the works takes place in advance of the deadline contractually set, is recognized an acceleration prize for every day in advance.
The amount of the prize is commensurate, within the limits of the sums available, indicated in the economic framework of the intervention under the item “unexpected”, for the days in advance and in proportion to the amount of the contract or of the contractual services, in accordance with the criteria defined in the tender documents and according to temporal brackets and progressive performance thresholds and is paid to the conclusion of the testing operations.
In the initial tender documents, the contracting authority recognizes, compulsorily, a determined acceleration prize on the basis of the aforementioned criteria also in the event that the contractual term is legitimately extended, if the completion of the works takes place in advance of the deadline extended. The deadline referred to in the third period, relating to the contractual timing, is completed from the date originally foreseen in the contract.
In the case of services and supplies it is possible to provide in the announcement the recognition of a rewarding provided that it is compatible with the object of the contract.
Synthesis table of the reward
| Type | Condition | Regulatory ref. |
| Social reward/collective contracts | Mandatory | art. 57 c. 1 and 2-bis, all. II.3, Legislative Decree 36/2023-art. 21 of Legislative Decree 209/2024 |
| Acceleration award | Mandatory for works Optional for services and supplies |
art. 126, paragraph 2, Legislative Decree 36/2023 – art. 45 of Legislative Decree 209/2024 |
| Sustainable materials | Optional | art. 108, c. 7 of Legislative Decree 36/2023 – art. 36 of Legislative Decree 209/2024 |
Social reward
As regards the provision of reward mechanisms and tools referred to in article 57, paragraph 2-bis inserted by article 87 of Legislative Decree 209/2024 to carry out equal generational and gender opportunities and to promote the working inclusion of people with disabilities or disadvantaged, attachment II.3 to Legislative Decree 36/2023 provides that the contracting stations insert in the calls and in the warnings, of the (mandatory) clauses aimed at insertion, as necessary or reward requirements.
Further reward measures may provide for the assignment of an additional score to the offerer or the candidate as specified in paragraph 5 of article 1 of Annex II.3 to Legislative Decree 36/2023 according to the requirements that allow to build a grid of criteria adapted to the selection of the reliable.
Sustainable materials
The changes introduced by article 36 of Legislative Decree 209/2024 in Article 108, paragraph 7 of Legislative Decree 36/2023 provide for the possibility, in the contracts of supplies and in mixed contracts, to include in the tenders, notices or invitations of the reward criteria please the supply of construction product that fall within a system of exchange of emissions for the reduction of greenhouse gas.
These compulsory and optional specifications constitute another passage, still initial, but which allows the contracting stations that decide to prepare custody on which the qualitative aspects weigh with respect to the conditions which, before the current code, have seen design competitions entrusted to the lower price, with reduced offers of 40-50%, and the results of the management of the works and the quality of the works that are sadly evident.
